Decisions. Court rules on lethal injection challenges
UPDATE 10:35 a.m.
The Supreme Court ruled unanimously on Monday that death row inmates seeking to challenge the lethal injection method of execution may pursue the issue as a civil rights claim, a broader option than federal habeas. The ruling came in Hill v. McDonough (05-8794). While not ruling itself on the constitutionality of that execution procedure, the Court said that inmates who contend that the three-drug protocol most commonly used causes unnecessary pain and suffering may go forward with an Eighth Amendment claim under the 1871 civil rights statute, so-called Section 1983.
The decision involved Clarence Hill, a Floridian on death row for first-degree murder. He filed a civil rights challenge to the execution protocol, but his case was rejected, on the theory that it essentially was a federal habeas challenge, and he had used up his opportunities to bring such a challenge. In overturning that result Monday, the Supreme Court relied upon a 2004 decision, Nelson v. Campbell, allowing an inmate to challenge an invasive surgical procedure as part of the lethal injection process. The Court said Hill’s claim — the identical one that death row inmates across the nation are making — was like Nelson’s in its essential particulars, so it must be treated as a civil rights challenge.
Although this clears the way for continuing challenges by virtually any inmate in the states using lethal injection protocols, those complaints have not fared well on the merits, and have frequently been rejected. The Supreme Court itself has denied review repeatedly of that issue on the merits.
Justice Anthony M. Kennedy wrote that decision, and also was the author of the only other ruling of the day in an argued case. The Court decided in that other case that a Tennessee death row inmate has made a sufficient showing on his claim of innocence based on new evidence so that his case may proceed in federal habeas court. The ruling came in House v. Bell (04-8990). The ruling was highly fact-bound, and thus did not appear to alter the standards the Court uses for judging “actual innocence” claims as an exception to the tight rules against repeated habeas challenges.
The Court plans to issue more decisions on Thursday of this week, and is expected to have more than one decision day next week as it begins its push toward summer recess near the end of the month.
It is reassuring to note that Kennedy, in writing House v. Bell, relied heavily on a case in which he sided with the dissent, Schlup v. Delo, 513 U.S. 298 (1995). Does this mean Kennedy is willing to side with “the Court” rather than continue to dissent in all future cases, or is this just one of those rare cases?
Comment by valpodogs — June 12, 2006 @ 11:24 am
This is Kennedy showing he is now the swing vote (it was 5-3 with Alito not participating). With Roberts in the minority, Stevens assigned the case to Kennedy to keep his vote. Kennedy also called it an extemely close case, highly fact-bound as Lyle said, leaving a lot of wiggle room for the future.
Comment by r.friedman — June 12, 2006 @ 12:20 pm
Kennedy’s vote in House is not necessarily in conflict with his dissent in Schlup, given the necessarily fact-based nature of such cases.
It is, in other words, entirely possible for a Justice to agree with the law in such a case, while disagreeing with the application of the law to specific facts. A dissent merely means that a Justice disagrees with the overall outcome.
Comment by Marc Shepherd — June 12, 2006 @ 12:38 pm
Justice Kennedy joined Chief Justice Rehnquist’s dissent in Schlup, which did disagree with the majority opinion on the standard to be applied. The dissent would have applied the Sawyer standard to guilt as well as eligibility for the death penalty.
There is nothing unusual about a Justice applying a precedent even though he dissented when that precedent was made. Justices stubbornly insisting on their position long after the issue should have been considered settled (e.g., Brennan and Marshall on Gregg v. Georgia) are fortunately the exception. Note Lyle’s other post today regarding Justice Stevens’s comments about Almendarez-Torres.
The bottom line is that very little new law was made in this case. It is the application of Schlup to the particular facts of this case, and the Court rejected the invitation to revisit the Herrera issue. The Court did confirm that Congress’s abrogation of Schlup in its original context, successive petitions, does not carry over to procedural defaults, but that is no great surprise.
Comment by Kent Scheidegger — June 12, 2006 @ 1:01 pm
Let’s just hope that the 11th Circuit or District will take the last-minute abusive nature of Hill’s challenge and deny the stay motion.
Hill should be executed forthwith, and the federal courts should butt out.
Comment by federalist — June 12, 2006 @ 2:53 pm
Near the end of the Hill opinion, the Court reaffirms that Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (the Robert Alton Harris case) is still good law. That is, you can’t hold a challenge to the state’s long-established method until the eve of execution and then demand an equitable remedy. Then the opinion says, “The federal courts can and should protect States from dilatory or speculative suits….”
Yes, they can and they should, but will they? In the Ninth Circuit, I will believe it when I see it.
Comment by Kent Scheidegger — June 12, 2006 @ 4:10 pm
What is particularly irksome about this case is the message that it sends to the lower federal courts. The Supreme Court could have chosen a case in which the prisoner had won, granted cert. and then issued the exact same decision. Justice Stevens could have made his irrelevant remark about putting cats and dogs to sleep; Souter could have lectured the AG about state legislatures keeping up with the latest and greatest Lancet issue (on top of keeping up with the annual revisions to the Supreme Court’s capital punishment jurisprudence); and Kennedy could have admonished his colleagues about there being a life at stake.
But no, what the Supreme Court did here was pick a case where the litigant chose to raise a claim in federal district court a mere five days before execution and give him a stay. The Supreme Court could easily have dissolved the stay a few days later–after all, the 11th Circuit’s decision is perfectly justifiable under Gomez, and the Supreme Court could have simply waited for a decision where the prisoner won. Or it could have waited for a decision where a prisoner without a firm execution date filed a claim in federal court under 1983.
Instead, the Court, in its infinite wisdom, chooses to tell lower courts that they have to be faithful to Gomez, yet by its own actions undermined Gomez (I think it hard to argue that Hill’s actions in this case were not dilatory).
Let’s not forget justice here either. Hill is a murderer–a murderer who slept on his rights. The Supreme Court gave him a stay–there are plenty of judges who will take the Court’s lead.
The original stay issued by the Supreme Court was an abuse. Perhaps Congress should get involved.
Comment by federalist — June 12, 2006 @ 5:04 pm
The only abuse in this case was the 11th Cir. denying a stay on the precise grounds that the 4th Cir. had done in Nelson v. Campbell without deigning to notice the Supreme Court’s reversal of that decision.
In granting the stay, Justice Kennedy saved the life of someone who would otherwise have been executed in plain defiance of law.
The unanimous opinion today makes that quite clear.
One can only wonder why it wasn’t a summary reversal.
Comment by Reason — June 13, 2006 @ 12:03 am
Instead, the Court, in its infinite wisdom, chooses to tell lower courts that they have to be faithful to Gomez, yet by its own actions undermined Gomez (I think it hard to argue that Hill’s actions in this case were not dilatory).
Respectfully, the above is nonsense: the Supreme Court is not bound by its own precedents unless it feels like being bound. The Supreme Court is the Supreme Court. Let us say that the actions of the Supreme Court, in issuing the stay, implicitly repeal Gomez. Well, when the Supreme Court thereafter says that Gomez is binding law on lower courts, it has explicitly reinstated Gomez, so Gomez is binding on lower courts until the the Supreme Court says otherwise. The law is what the Supreme Court says it is: Where is the undermining?
Comment by Commentator — June 13, 2006 @ 2:00 am
Reason:
1) I think the “defiance” language is over the top, and worse, inaccurate. The 11th Circuit (and keep in mind that it was faced with a last-minute appeal, so time was short) appears to have gotten the result right–as I wrote previously, a denial of the stay seems consistent with Gomez here, and I think it a difficult proposition to argue otherwise.
2) Even if the 11th Circuit had world enough and time, I think you can chalk up its reasoning in the case as just a bit more evidence of the confusion that the Supreme Court’s capital jurisprudence has wrought.
3) With respect to “saved the life”, that’s certainly one way to characterize it. Another way to characterize it is that Justice Kennedy stepped in to thwart a state capital judgment over 20 years old. In so doing, Justice Kennedy chose to put the victim’s family through the ringer for the benefit of a vicious cop-killer who slept on his rights. Given our federal system, this intrusion was simply unwarranted, and, in my view, an outrage. That Justice Kennedy had the power to stay the execution does not make it right.
Commentator:
1) There is a “do as I say, not as I do” quality about this decision. Gomez counsels against the granting of stays as a result of last-minute filings, yet that was precisely what the Supreme Court did here.
2) Also, I would point out that when the Supreme Court says or does something, as a practical matter, it is law. But that does not make it right, nor does it mean, by definition, that the outcome was not the result of whim.
3) Hopefully, Congress will simply decide (as it tried to do with the enactment of AEDPA) that these last-minute stay applications should be completely frowned upon. The Supreme Court has tolerated interference that AEDPA clearly was intended to prohibit (e.g., Nelson, Lambert, Morales, Cooey). Accordingly, Congress may have to take more drastic measures here. Perhaps, a withdrawal of jurisdiction or simply an amendment of the Anti-Injunction Act, which the Supreme Court blew off, stating that state proceedings aren’t to be stayed by federal courts despite a pending 1983 claim.
Comment by federalist — June 13, 2006 @ 7:12 am
Fed –
The challenges are “last minute” because of the doctrines of standing and ripeness. There has to be a death warrant before an inmate can claim that he will be subjected to the procedure; these are not issued while legal proceedings challenging the conviction are in progress.
Your consistently bloodthirsty and vindictive posts are seriously worrisome. Did you feel joy and satisfaction from the McVeigh execution, from the al-Zaquari bombing? For most people, they were anti-climactic, no “ultimate punishment”, vastly out of scale to the enormity of their actions. But you eat it up and want more? It is to civilize these feelings and permit us to live together that law is counterpoised to revenge. You can’t expect the law to live up to your barbarian expectations.
Comment by r.friedman — June 13, 2006 @ 8:20 am
R.friedman, where to begin?
1) If these murderers had no option but to file at the last-minute, then why do the stays, often enough, get overturned?
2) As for being “bloodthirsty” or “vindictive”, I will not apologize for my belief in capital punishment, nor will I apologize for my belief that the court system has let down the American people, who, consistently enough, have voted for the death penalty. The bottom line is that when federal courts were thought to be interfering with it too much, the American people enacted, through their representatives, AEDPA.
3) As for the law living up to my barbarian expectations, I’d point out that I think it completely immoral for a court system to routinely thwart society’s legitimate expectations with respect to punishment. Hill is an evil killer. Justice Kennedy, and apparently with your approval, saw fit to stop the execution, and in so doing put the victim’s family through anguish. Now, I ask you, what’s more “barbaric”, executing a murderer or putting a victim’s family through such a thing? Kindness to the cruel is cruelty to the kind.
4) As for al-Zarqawi, I was definitely happy about that one. I was happy for our troops whose dedication paid off, and I was happy that our guys won’t have to risk their lives any more to rid the world of that animal. As for McVeigh, joy is not the word, but I do believe that having the will to express society’s moral outrage is something to be admired. And there is satisfaction that justice is being done.
5) Finally, you know what I find strange, we constantly hear the bleatings of “there’s a life at stake”, as if the execution of a murderer creates the moral imperative to make the system do handsprings to protect the “rights” of the condemned. (I put “rights” in quotes because all sorts of rights seem to pop up in the capital punishment context.) But somehow I never seem to hear any bleats about the savagery of lenience to criminals. It’s funny how I am bloodthirsty, but people who release violent criminals onto our streets (a policy which has a steep price in innocent blood) are either enlightened or not the target of such opprobrium.
Funny, you’d never hear Justice Kennedy comment to his brethren about how society’s safety (i.e., innocent lives) are at stake.
Comment by federalist — June 13, 2006 @ 11:02 am
1) There is a “do as I say, not as I do” quality about this decision.
That is equally true of any Supreme Court decision, because it is the highest court.
Comment by Commentator — June 13, 2006 @ 1:00 pm
Commentator obviously didn’t get the reference to Kennedy’s dissent in Rompilla v. Beard, where Kennedy chastised the Court for telling lower courts to do as the Court says not as it does.
Comment by federalist — June 13, 2006 @ 1:09 pm
Re House.
The Schlup gateway is passed if “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” (my emphasis) in the light of the new evidence.
Roberts, in his dissent, takes this to mean that the gateway is not passed if it is more likely than not that at least one reasonable member of the jury would have found petitioner guilty. In other words, if the jury would have voted 11-1 to acquit with probability 51%, and unanimously to acquit with probability 49%, then the gateway is not passed.
I cannot disagree that this is the logical interpretation of the black letter of Schlup. However, I would find it astonishing if it were the intended spirit of Schlup that a defendent who would have received a strong acquittal in the light of new evidence is denied his federal habeas action because there would more likely than not have been a solitary vote against him! I would suggest it is harder to meet this standard than it is to meet the freestanding innocence standard alluded to in Herrera, and on which this Court declined to elucidate.
Surely the Schlup court intended the standard to be what this Court applies at 18: that it be more likely than not that any (not every) reasonable juror would not have found petitioner guilty?
On a separate note, I find Roberts’ dissent rather more persuasive on the issue of the Court’s lack of regard for the District Court’s evidence reliability hearing without a finding of clear error.
Comment by Adamos — June 13, 2006 @ 1:15 pm
Fed –
“Society’s moral outrage” has only a marginal connection to criminal law. We can be outraged that quick-on-the-trigger police kill an entirely innocent person, but they are protected by qualified immunity. We can be outraged that a surgeon does something stupid and kills somebody, but malpractice is the only remedy. We can be outraged that miners die for lack of working ventilators, and the Mine Health & Safety Administration will still maintain that mine operators can’t be bludgeoned into compliance. We can be outraged that nursing home patients drown in Hurrican Katrina, but all that happens is that the director of FEMA resigns. We can be outraged when a semi driver who has been working too long wipes out a family car, but that’s what the K Street lobbyists are paid to achieve.
Why are your outrages pandered to and not ours? There’s no publicist, no lobbyist for copkillers or child molesters (no, not even the ACLU, they’re there to prevent invasions of liberty from getting their nose into the tent as measures directed at copkillers and child molesters). The Founders were well aware that the popular will could be swayed by demagoguery, for this reason they created a Bill of Rights and a judicial system to enforce those rights. There is a cruel and unusual punishment clause, which these lawsuits are seeking to enforce. Maybe you would prefer death by stoning and are more than willing to throw the first, but most of us have given up that opportunity in order to secure the blessings of liberty for ourselves and our posterity.
Comment by r.friedman — June 13, 2006 @ 2:15 pm
Commentator obviously didn’t get the reference to Kennedy’s dissent in Rompilla v. Beard
R. Friedman obviously does not get that dissents are not law and Justice Kennedy only speaks for the Court when he is in the majority.
Comment by Commentator — June 13, 2006 @ 2:20 pm
Whoops, I meant “Federalist obviously does not get that dissents are not law and Justice Kennedy only speaks for the Court when he is in the majority.” Sorry, R. Friedman.
Comment by Commentator — June 13, 2006 @ 2:22 pm
Thanks for the tip, Commentator. I missed that day in law school.
Otherwise, I fail to see how all Supreme Court decisions are “do as I say, not as I do”. Please enlighten me.
Comment by federalist — June 13, 2006 @ 2:26 pm
R. Friedman:
You’re right, we do have a Bill of Rights. But we also have something deeply ingrained in our system–namely, federalism and the idea that people cannot sleep on their rights.
If you believe that with respect to the death penalty, or even criminal law in general, that criminals should have the right to litigate any issue at any time of their choosing–just say so. No one is disputing that murderers are entitled to a forum to litigate claims that lethal injection will be painful. My point is that people who wait until the last minute to litigate such claims should not get a federal forum to do so.
And when I point out that when murderers are given this succor, it appears that judges are favoring murderers over victims and the state. For this, I am called “bloodthirsty” and “vindictive”.
And as for my “outrages” pandered to, I must that’s Orwellian. This is a democracy. The death penalty, as savage as it may seem to you, has democratic legitimacy in this country. When courts unduly interfere with it, there is a problem. Here, we have the Supreme Court rewarding a murderer for his dilatory filing. In my view, it was wrong to do so.
Is that such an “out there” position? I think not.
Comment by federalist — June 13, 2006 @ 2:41 pm
Otherwise, I fail to see how all Supreme Court decisions are “do as I say, not as I do”. Please enlighten me.
In establishing national rules, SCOTUS is not bound by any particular Circuit’s precedents or its own. Lower courts certainly shouldn’t ignore their Circuit’s precedents or SCOTUS precedents, like SCOTUS does and they certainly must follow SCOTUS precedent once the Court speaks.
Comment by Commentator — June 13, 2006 @ 5:07 pm
federalism and the idea that people cannot sleep on their rights.
I have heard of federalism, but I do not think “people-cannot-sleep-on-their-rights” is consistent with the Ninth or Tenth amendments, i.e., federalism.
Comment by Commentator — June 13, 2006 @ 5:09 pm
Commentator, your explanation is incomprehensible. The Supreme Court is free to ignore its own precedent, but it is rare indeed that the Court tells courts to follow one of its cases (i.e., Gomez) while seeming to violate it at the same time (i.e., here, because it granted the stay for a considerable period of time).
The sleeping on rights thing is a doctrine of equity (the corollary is that equity aids the vigilant), which pre-dates the founding of the Republic. But let’s look at it this way, if we’re going to simply let state-convicted murderers raise claims in federal courts whenever they want, that hardly seems consistent with “Our Federalism”. Moreover, the idea that a convicted murderer gets any forum he chooses at any time he chooses has no home in the Constitution. And your citation of the Ninth and Tenth Amendments, to borrow a word from an earlier post of yours is “nonsense”.
Comment by federalist — June 13, 2006 @ 5:44 pm
And your citation of the Ninth and Tenth Amendments, to borrow a word from an earlier post of yours is “nonsense”.
You’re right. Neither the Tenth Amendment nor the Ninth Amendment has anything to do with federalism and neither Amendment’s reference to “the people” has anything to do with “people sleeping on their rights”.
if we’re going to simply let state-convicted murderers raise claims in federal courts whenever they want, that hardly seems consistent with “Our Federalism”.
I don’t think any SCOTUS decision says or implies that “murderers can raise claims whenever they want.”
The Supreme Court is free to ignore its own precedent, but it is rare indeed that the Court tells courts to follow one of its cases (i.e., Gomez) while seeming to violate it at the same time (i.e., here, because it granted the stay for a considerable period of time).
The point you missed, which I made above, was that if the Court seemed to violate Gomez, it did so by issuing the stay at Time 1. After doing so, at Time 2, the Court said “follow Gomez,” i.e., Gomez is good law now. Time 1 and Time 2 are not “at the same time”. Duh.
Comment by Commentator — June 13, 2006 @ 6:11 pm
Commentator, I will say this, you do a nice job of bobbing and weaving.
I note the following:
1) You started out by asserting that there is a “do as I say, not as I do” quality to every Supreme Court decision. At the end you’re making the observation that the Supreme Court in effect rehabilitated Gomez if it in fact violated it in the first place. So what? I was making the point that the Supreme Court’s actions in this case seem inconsistent with Gomez, despite the fact that the Court reaffirmed Gomez, i.e., the Supreme Court is telling courts to do what it says, not what it does. And while the Supreme Court certainly has the power to do this, it is somewhat problematic for those of us who think that there should be consistency out of that Court. As for your Time 1 and Time 2 explanation, the idea that Gomez was good law prior to Time 1, was in suspended animation after Time 1 (a lot of judges seemed to think so, given the stays or dissents from denial of stays that were issued) and then got cured upon Time 2 really proves my point that the Supreme Court acted in a completely unprincipled manner here.
2) I did not say that the Supreme Court has said or implied that murderers can raise claims whenever they want. What I said was that the Supreme Court, by granting a stay to a person who filed a claim in federal district court a mere five days prior to his scheduled execution, was an abuse. Posters in response to that statement have made arguments that these stays were justified because of standing and ripeness doctrines and have strongly implied that just because the defendant has a claim, no matter how late-filed, that it needs to be litigated. That idea is simply incompatible with “Our Federalism”.
3) I was responding to this statement:
I have heard of federalism, but I do not think “people-cannot-sleep-on-their-rights” is consistent with the Ninth or Tenth amendments, i.e., federalism.
Perhaps you have not heard of the principle of “raise it or waive it”, but it is something pretty well ingrained in our legal system. People waive the most basic of rights in our system all the time. Why this has anything to do with the Ninth Amendment or the Tenth Amendment is a complete mystery to me.
4) I still don’t get the ad hominems, nor do I get the opposition to the basic idea that rewarding murderers for last-minute stay applications exalts the interests of dilatory murderers over the interests of victims and the states in a manner that is not dictated by law and creates a good deal of tension with the federal character of our Republic. I make no bones about saying that the Supreme Court had a choice, and it chose the side of a vicious murderer. That is a harsh characterization, but I see nothing in all the ad hominem attacks that undermine that conclusion one iota.
Comment by federalist — June 13, 2006 @ 7:27 pm
Federalist:
I’ve been following these comments, because the case seems interesting to me, and although I don’t mean to attack you or your point of view, I’ll respond to you because you’re the last poster in front of me, and some of your points trouble me.
You’ve made some references to federalism and “our federalism,” which is usually considered to derive from the Ninth and Tenth Amendments. If you want to persuade people as to your point of view, you should connect the dots more. You’ve said that the “late-filed” claims in question violate, or are incompatible with “Our Federalism,” yet you also imply that your argument is unconnected to the Ninth or Tenth Amendments. Further, although people have pointed out that the timing of the claims is related to ripeness and standing doctrines, you state that the claims are still incompatible with “Our Federalism.” I, and possibly others, have trouble following this line of argument. Even if the timing of the claims in question can be viewed as incompatible with federalism, standing and ripeness seem so fundamental to federal court jurisdiction that I would think those doctrines would govern here.
Also, although “raise it or waive it” might be ingrained in our legal system, and it certainly is a notion closely connected with rules of equity (hence estoppel by laches) that does not mean that that there is a connnection with federalism, or even with constitutional requirements.
Finally, I find a big problem with your references to the “reward” that SCOTUS is giving convicted murderers. Whether you’re pro- or anti-death penalty, it’s worth acknowledging that the Court is not ordering anyone’s release or invalidating the sentence. The fact that this claim can be heard will likely only delay the execution. And if there is actual merit to it, then I fail to see how anyone is getting a “reward” greater than what justice requires. In that situation “reward” seems like hyperbole.
I could opine further, but this is my first post to any law blog, and I’m hoping not to go too far. For what it’s worth, I would like to add that I agree with you that ad hominem attacks are unhelpful, and furthermore I too disagree with the notion that Supreme Court decisions and opinions have an inherent “Do as I say, not as I do” quality to them.
Comment by Jeff — June 14, 2006 @ 10:46 am
The Only Part Worth Responding To: “As for your Time 1 and Time 2 explanation, the idea that Gomez was good law prior to Time 1, was in suspended animation after Time 1 (a lot of judges seemed to think so, given the stays or dissents from denial of stays that were issued) and then got cured upon Time 2 really proves my point that the Supreme Court acted in a completely unprincipled manner here.”
Unprincipled in what sense? What principles should have been applied that weren’t? The Supreme Court is the Supreme Court. All you are saying is that you didn’t like the decision because you like to see people [who "sleep on their rights"] die.
Comment by Commentator — June 14, 2006 @ 12:50 pm
Well Commentator, read the opinion in Hill. It states quite clearly that courts should protect states from dilatory filings. Here, a vicious murderer filed his federal claim 5 days before his scheduled execution date, and the Supreme Court stayed his execution. It does not appear from this vantage point that Florida was at all protected from the problems generated by the last-minute filing. Do you think so? So therefore, the Supreme Court, while reaffirming the idea that states should be protected from these dilatory filings did exactly that. Unprincipled is a word that comes to mind.
As for the silly comment that I want to see people who sleep on their rights die–that is a gross mischaracterization of everything that I have said, which shows quite clearly Commentator that you are intellectually dishonest.
Comment by federalist — June 14, 2006 @ 1:39 pm
I pushed the button too quickly, the above post should read: “did exactly the opposite” vice “did exactly that”.
Comment by federalist — June 14, 2006 @ 1:41 pm
Unprincipled is a word that comes to mind.
To the mind of an illogical person. Unprincipled in what sense? The Supreme Court is not bound by its own precedents unless it feels like being bound.
Comment by Commentator — June 14, 2006 @ 3:10 pm
One wrinkle in House that I have not seen touched upon is the “newness” of the evidence that Schlup requires. There is a split in the circuits over whether the evidence need merely be “newly presented” — i.e., not presented at trial — or “newly available” — i.e., not available at trial or discoverable through due diligence.
Although the SCOTUS did not address this issue, much of the evidence it relied on appears to have been available to House at trial, but just not presented. Although this is speculation, perhaps the reason the court was willing to consider this evidence is because House was raising a claim of ineffective assistance of trial counsel?
Comment by kevinas — June 14, 2006 @ 4:21 pm
Federalist,
Do you think Bush v. Gore was rightly decided?
Comment by Commentator — June 14, 2006 @ 6:37 pm
Jeff:
With respect to the Ninth & Tenth amendments, I was not making saying that they were related to the idea that we don’t reward people who sleep on their rights. What I was saying was that federalism is part of our system in addition to the idea that people cannot sleep on their rights. In other words, there are two separate reasons why these stays are wrong: 1) they offend our federalism and 2) violate long-held principles of equity.) What that means to me is that (a) the courts should be wary of federalism concerns and (b) they should also be wary of allowing last-minute filings thwarting justice, i.e., equity concerns. I don’t think that any of my posts said that rules like waiver etc. came from federalism, although, I would argue that in the context where a federal court is interfering with the state criminal justice system, stays in response to last-minute filings are particularly obnoxious to the dignity of the state.
With respect to federalism, it, I would think, would hardly need to be argued that a federal court exercising its powers to stay a state execution when the condemned files his lawsuit a mere five days before his execution would present serious comity (i.e., federalism) issues.
As for the reward, you write:
“The fact that this claim can be heard will likely only delay the execution. And if there is actual merit to it, then I fail to see how anyone is getting a ‘reward’ greater than what justice requires. In that situation ‘reward’ seems like hyperbole.”
First of all, I fail to see how granting a stay to a person who raises a claim five days before his execution is “what justice requires”. It is offensive to the state and the victim’s family. And, from where I sit, the equities pretty much always favor them over some vicious murderer who slept on his rights. (Let’s not forget that Mr. Hill had years of taxpayer-funded appeals in both federal and state courts.)
Second, the murderer is getting a reward. If Hill had filed his claim earlier, it would have been resolved, and he likely would have been executed when he was scheduled. Instead, because he waited, he got extra time. A small reward, perhaps, but one nonetheless, and I fail to see why federal courts ought to be encouraging this last-minute gamesmanship by granting these stay motions. I would also note that had the 11th Circuit taken the approach that the Sixth Circuit did, i.e., assume that a 1983 claim could be filed and then denying the stay on the grounds that a likelihood of success has not been shown and that the condemned should have raised the claim earlier, the Supreme Court would likely have denied cert., since that’s what it did with respect to the Sixth Circuit. So you have the 11th Circuit, which, when faced with a last-minute appeal, guessed wrong with respect to the reasoning behind its decision, getting reversed, even though the outcome was the same as the Sixth Circuit, which did not. I cannot help but believe that frenzied nature of the litigation (which was caused by the late filing) contributed to the 11th Circuit’s “error”.
I think also you miss an important point. If we are going to have a death penalty in this country (and it is unquestionably constitutional and approved by voters through their representatives and therefore deserving of the respect of the federal courts), then it cannot be subject to endless appeals. Else, we won’t have it, and while that may be fine with people in here, it is certainly contrary to the will of the people, who, incidentally, have tried before to rein in the federal courts by passing AEDPA. The Nelson case alluded to in Hill provides an example. The state continues to litigate the issue, four years after Nelson v. Campbell. That is unacceptable. Unacceptable. The blame for that state of affairs lies squarely with the US Supreme Court, and I have no problem saying so. And in acting in the unprincipled manner that it did with respect to Hill, it encourages other federal courts to do so as well. Should Hill get four years to litigate Florida’s procedure? Should each and every inmate get a full-blown hearing on lethal injection (remember Martin v. Wilks)?
If the death penalty is to be abolished, it should be abolished by the people, not by a bunch of unelected judges who simply gum up the works too much for it to be practicable.
I may be “bloodthirsty”, “vindictive” and “illogical”, but at least I am on the side of protecting the decisions of the people through the democratic process instead of cheering the thwarting of democratic will through judicial gamesmanship.
Comment by federalist — June 14, 2006 @ 10:37 pm
Federalist: I may be “bloodthirsty”, “vindictive” and “illogical”, but at least I am on the side of protecting the decisions of the people through the democratic process instead of cheering the thwarting of democratic will through judicial gamesmanship.
Do you think Bush v. Gore was rightly decided?
Comment by Commentator — June 15, 2006 @ 1:20 am
I admire Federalist for exhibiting self-restraint in not responding to Commentator’s repeated off-topic jabs about Bush v. Gore, but I lack similar self-restraint. My understanding is that such jabs are based on a widely held belief among liberals that Bush v. Gore somehow makes a mockery of conservatives’ professed beliefs in federalism and judicial restraint; and that conservatives are accordinigly embarrassed by the decision.
It is not my purpose to re-argue Bush v. Gore here. Rather, while liberals can fume all they want about the decision and about supposed conservative hypocrisy, they need to understand that conservatives have absolutely no pangs of conscience about the decision and do not accept liberal versions of the “federalism” that would (if accepted by conservatives) be at odds with Bush v. Gore. I have met a fair number of conservatives who have doubts about the specific equal protection rationale of the Bush v. Gore per curiam majority. But I have met virtually no conservatives who think the Court reached the wrong outcome.
Commentator apparently believes that the Bush v. Gore majority failed to “protect the will of the people through the democratic process” but instead took action that amounted to “thwarting of democratic will through judicial gamesmanship.” I have yet to meet a judicial conservative who did not believe that those phrases applied to the actions of the Florida Supreme Court and that the U.S. Supreme Court acted correctly in siding with Florida’s elected branches of government. I recognize that many on the left do not agree with that view, but they need to realize that they are wrong in thinking that conservatives who sincerely believe the federalism/judicial restraint views they publicly espouse must secretly be embarrassed by Bush v. Gore. I suspect that the decision will be viewed as controversial in history books, but it will always be remembered by judicial conservatives as one of the Court’s proudest moments.
So, Commentator, please stop thinking that you can embarrass us by spouting, “Bush v. Gore,” whenever you get sick of hearing a conservative’s arguments in support of judicial restraint.
Comment by Richard Samp — June 15, 2006 @ 5:26 pm
Mr. Samp: I have yet to meet a judicial conservative who did not believe that those phrases applied to the actions of the Florida Supreme Court and that the U.S. Supreme Court acted correctly in siding with Florida’s elected branches of government.
1. I never said Bush v. Gore was wrongly decided. I asked a question. But thanks for jumping to wrong conclusions.
2. That brings me to you being shockingly wrong: I am not a liberal. I am a card-carrying member of the Federalist Society. I identify as a conservative-libertarian, and not just when big business interests need a special-interest amicus, sir.
3. Federalist says above: “Here, a vicious murderer filed his federal claim 5 days before his scheduled execution date, and the Supreme Court stayed his execution. It does not appear from this vantage point that Florida was at all protected from the problems generated by the last-minute filing. Do you think so? So therefore, the Supreme Court, while reaffirming the idea that states should be protected from these dilatory filings did exactly that. Unprincipled is a word that comes to mind.”
If the concern is protecting States from federal claims in the interest of comity, then Bush v. Gore — as a matter of law — is directly on point. It is even the same state: Florida.
My point is you can have it one of two ways:
1. Hill was rightly decided and Gore was rightly decided; or
2. Hill was wrongly decided and Gore was wrongly decided.
But, conservative or not, you don’t get to mix-and-match. What I was taking Federalist to task for was having the gall to call the Supreme Court inconsistent and thus unprincipled and then presenting an utterly inconsistent and thus unprincipled argument.
“So, Commentator, please stop thinking that you can embarrass us by spouting, “Bush v. Gore,” whenever you get sick of hearing a conservative’s arguments in support of judicial restraint.”
And maybe you shouldn’t hastily jump into an argument that doesn’t concern you simply to defend a fellow conservative. Restraint is good for the gander, too.
Comment by Commentator — June 15, 2006 @ 7:48 pm
Commentator:
(1) I’m not sure that “taking me to task” is really an accurate description of your posts here–”biting at my ankles” maybe, but not taking me to task.
(2) I fail to see how my arguments are unprincipled and inconsistent. I have argued that the Supreme Court issued an opinion wherein the Court stated that states should be protected from dilatory or speculative filings after it issued a stay in response to a dilatory/speculative filing. I have argued that the Supreme Court has acted in an unprincipled manner (to which your basic response is that “It’s the Supreme Court, it gets to do that”. Yes, it does. But having the power to do something does not, ipso facto, make it principled. By that logic, every last one of Louis XIV’s actions were principled–after all, L’etat c’etait lui”). I have argued that the Supreme Court, when faced with a choice which was not dictated by law, chose to side with a vicious killer who slept on his rights instead of the state and the victim’s family. How are my arguments unprincipled or inconsistent?
3) At the risk of going into the Bush v. Gore fever swamp, I will note that principles of federalism are not able to be trotted out simply because someone doesn’t like a result. Not all federal court action that impacts the states is unconstitutional. However, one certainly does not have to have an extreme view of federalism to wonder out loud whether a person who has had a full round of federal habeas and numerous rounds of state appeals and who waits until five days prior to his scheduled execution date should be entitled to a stay from a federal court. But hey, the Supremes get to do what they want, so it’s ok.
4) With respect to the admonition about “jumping into an argument that doesn’t concern you”, and using “restraint”, I must say that you have a good deal of temerity. You have used the words “Duh”, “an illogical person”, and have characterized me as wanting to see people die. First, this is a public board, and people are entitled to post. Second, you have shown little restraint in your argument. (Now, of course, I don’t hesitate to admit that my postings are sharp.)
5) I really don’t think that people care in the slightest that you are a card-carrying member of the Federalist Society.
6) I fail to see how Bush v. Gore, a case which did not involve any of the equitable concerns or the same comity concerns (remember, Bush v. Gore was on direct appeal from the state court, Hill involves a collateral attack), is directly on point as a matter of law.
Commentator–basically your whole argument can be broken down into this:
“They’re the Supreme Court.”; “You’re a big meanie because you want to see people die.” and “You secretly love Bush v. Gore”. I think that you should change your post name to “Gratiano”.
Comment by federalist — June 15, 2006 @ 8:57 pm
But having the power to do something does not, ipso facto, make it principled.
It does if the principle is “I get to do whatever I want.” Or “the law is what I say it is”. You might want to check out Marbury v. Madison.
You don’t think the same federalism concerns are involved. You are wrong. Whether it is a collateral attack or a direct appeal is irrelevant; in both cases the Supreme Court is reaching in to override an essential state decision.
If you need more help connecting the dots, ask Jeff to explain why your arguments still make no sense. Or ask Richard Samp to submit a friend of the court brief.
Comment by Commentator — June 16, 2006 @ 2:46 pm
I have argued that the Supreme Court, when faced with a choice which was not dictated by law,
Was Bush v. Gore dictated by law?
Comment by Commentator — June 16, 2006 @ 2:49 pm
Second, you have shown little restraint in your argument.
This is a fallacy of relevance.
Comment by Commentator — June 16, 2006 @ 2:58 pm
I want to step back in briefly and respond to federalist.
I don’t think it would be honest of me to say that your arguments “make no sense,” even though I’ve been invited to say that by Commentator, whose remarks I refuse to join, for the most part. I think there’s a lot of baiting going on, and I hope you don’t get the impression I’m participating in that.
But I do think there are a few things left to work out in this back-and-forth. For one, I don’t think you accurately attributed to me the point of view that a stay is “what justice requires” when the request is filed within five days of execution. What I was trying to convey was that justice would require this stay if the inmate’s claim has merit. And that thought was in response to the use of the word “reward” — if there is merit to his claim, then his reward is the relief that he is entitled to under the eighth amendment. If there is no merit, then I still maintain that the reward of delaying the execution is too small to cause so much indignance.
Also, although I didn’t voice this in my above comment, I am never persuaded very much by arguments on behalf of victims’ families. I am sure I would want to see a killer die if he murdered a loved one, and I might even want to see someone die if he committed a violent crime against my wife which was not punishable by death, but I consider those feelings to be largely irrelevant to criminal justice. I think it is the state’s interest to punish, not the victim’s, nor the victim’s families.
Which brings me back to federalism. I accept your point that the state has an interest in having its sentences carried out. However, since the posture of this case does not involve an appeal, we know that nothing will happen to the guilty verdict, and in all likelihood, nothing will happen to the sentence. All that is affected for sure is the timing, so the federal court has indeed interfered with the death warrant. As long as the eighth amendment is applicable to the states (and we’ve probably come far enough that we shouldn’t be questioning that), the interest in having the timing of the execution upheld is properly below the importance of the prohibition against cruel and unusual punishment. And if it is later determined that this kind of execution is unconstitutional, then the state’s interest in having its sentence carried out is definitely below that prohibition in the U.S. constitution. That’s my opinion, and I realize I’m not going to convert with it.
And as for the equity argument, I’m even more unpersuaded. It is first of all unclear to me how he slept on his rights if the plaintiff had to fulfill standing requirements. Furthermore, assuming he had standing during the appeals process to raise what is now in the substance of his 1983 claim, I think the same issues of balance that I iterate above lead to the conclusion that a court should find neither waiver nor estoppel with respect to a claim under the eighth amendment.
Finally, I think it’s a mistake to turn this into a referendum on the death penalty. Even with this added door now open to inmates, the appeals/collateral attack process is not endless, even if it takes a long time. Furthermore, this would certainly not be a unanimous decision of the court if it were a reconsideration of the death penalty. We would hear more remarks from Justice Scalia, in any event.
Comment by Jeff — June 16, 2006 @ 3:22 pm
basically your whole argument can be broken down into this:
No, it can be broken down into this:
[Y]ou can have it one of two ways:
1. Hill was rightly decided and Gore was rightly decided; or
2. Hill was wrongly decided and Gore was wrongly decided.
Comment by Commentator — June 16, 2006 @ 3:24 pm
Jeff:
1. Before its magical evolution, Federalist’s orginal claim was “The original stay issued by the Supreme Court was an abuse.” Ignoring the merits of the prisoner’s claims, do you think mere issuance of the stay is an unprincipled exercise of the judicial power? If not, would you characterize that as an extreme view of federalism or, perhaps, an incoherent one? If not, why not?
2. “It was just a matter of timing” is an argument that could easily be made in the context of Bush v. Gore. Given that you concede that a state has an interest in having its sentences carried out, why is that interest lesser than its interest in having its election law and constitution interpreted by its own courts?
3. Is Marbury v. Madison good law?
Comment by Commentator — June 16, 2006 @ 3:40 pm
You’re right Commentator, any decision is principled if the principle is that they get to do what they want. Of course, I didn’t think we were dealing in trite truisms. Given the fact that the Court issues opinions (in order to justify the particular result through something other than a “we said so”), the Court itself doesn’t subscribe to your idea that it simply gets to do what it wants. Remember Commentator, it is the province of the courts to say what the law is, not the province of the court to do whatever they want.
As for “magical evolution”, I don’t see how my views have changed one iota.
As for Bush v. Gore, are you really trying to stay that my idea of federalism means that the Supreme Court does not get to review state decisions based on federal law? That is a caricature.
In case you didn’t figure out my Gratiano reference, I will spell it out for you:
“Gratiano speaks an infinite deal of nothing, more than any man in all Venice, his reasons are as two bits of wheat in two bushels of chaff. You shall seek all day, ere you find them, and when you have them, they are not worth the search.”
Comment by federalist — June 16, 2006 @ 4:05 pm
Of course, I didn’t think we were dealing in trite truisms.
I am uncertain how you could have reasonably thought so, given that the Tenth Amendment is a “tautology”. New York v. United States,, 112 S. Ct. 2403, 2418 (1992).
Comment by Commentator — June 16, 2006 @ 4:09 pm
That is a caricature.
That is also not my argument.
Comment by Commentator — June 16, 2006 @ 4:10 pm
Jeff: Basically your post boils down to the idea that because we’ll execute him anyway, delays are ok. Under your school of thought, there is no burden on prisoners to raise claims in a timely fashion. (The idea that standing prevents these claims is simply untrue.) It is interesting that in a legal system that generally bars untimely claims, you would make an exception for criminals.
As for the victims’ family, I generally agree with you. However, I make two points:
1) In this case, the victim’s family was at the prison waiting for the execution to be carried out.
2) The Supreme Court itself has stated that the family has an interest.
You also miss the practical reason about why last-minute appeals should be disfavored, even those alleging the deprivation of a constitutional right—if we don’t then we will not have a death penalty because these appeals will simply be thrown out there to stay executions. Finality is a very important thing, and you completely discount it.
Comment by federalist — June 16, 2006 @ 4:15 pm
Federalist (a.k.a Antisthenes): Remember Commentator, it is the province of the courts to say what the law is, not the province of the court to do whatever they want.
The above is called a straw-man. I have never argued that the Court can eat live babies for breakfast and declare immunity from prosecution because it is the Supreme Court. My obvious point is that the court can say the law means whatever it wants to, and issue whatever remedies conceivably fall within “the judicial Power,” even if what they say or do contradicts the Constitution. That is an empirical fact. Every Justice on the court knows this. They explicitly argued about it in Casey and in Lawrence and in Roper. Most people, in fact, think the Court “just does what it wants.” And they are right. Indeed, you wouldn’t be making these fulminating posts about what a travesty of justice the issuance of a stay by the Supreme Court was if you didn’t think it was a political institution and your lobbying on this public website didn’t make a marginal difference. So please, spare me the reminders, Antisthenes.
Comment by Commentator — June 16, 2006 @ 4:21 pm
Finality is a very important thing, and you completely discount it.
Here’s the thing about finality: It will be had even if the Supreme Court flips a coin to decide the case. How does finality help you in establishing that the Supreme Court must adhere to extra-legal quasi-moral principles in performing judicial acts?
Comment by Commentator — June 16, 2006 @ 4:25 pm
Federalist: You’re right Commentator, any decision is principled if the principle is that they get to do what they want.
Thanks for the concession, Federalist.
Not to be repetitive, but I will note that this leads us right back to fairness, which means consistency, i.e., treating like cases alike:
1. Hill was rightly decided and Gore was rightly decided; or
2. Hill was wrongly decided and Gore was wrongly decided.
Comment by Commentator — June 16, 2006 @ 4:29 pm
Well, the more you say, the more you have to answer for, I guess.
Commentator: I’m not really prepared to comment on the original stay, since I have been focused on the outcome of opening the door to 1983 claims for death row inmates. I’ll stick to my general thesis that there is no violation of federalism if the federal courts butt in where there is a possible constitutional violation.
And I’ll say further that I think in general the state’s interest in deciding its own election law is also subject to constitutional restraints, but I don’t know that that observation is relevant to a discussion on Bush v. Gore, and I’m not willing to go into any discussion of that case. Lastly, I don’t really understand your last question. I understand Marbury to be cited for the proposition that courts have the power to exercise judicial review of laws enacted by congress and legislatures, and I don’t know how anything I’ve said would point in another direction.
Federalist: Incorrect reduction of my argument. I’ve never been convinced that this was an untimely claim, and I haven’t seen in the original post or the comments where that was established. Also, although untimely claims are disfavored, I don’t think I’m making an exception for criminals. I haven’t said, for instance, that statutes of limitations on 1983 claims shouldn’t run against inmates. I interpreted your argument as saying that, since the eighth amendment claim was not raised in direct appeals, it should be deemed waived for the purposes of a 1983 action. I disagree with that, but that’s only secondary to my position that it the claim is timely if it is raised in response to a death warrant.
Finally, with regard to the finalty/status of the death penalty argument: I didn’t understand us to be talking about appeals. Civil claims like these can only be “thrown out there” so many times because there are a small number of procedures for the death penalty, and even if everyone on death row wants to challenge them, the relevant courts will decide their constitutionality once.
There are then two options. If it’s unconstitutional, the state can’t execute the other inmates anyway. If it’s constitutional, the other inmates have no 1983 claims, because they cannot allege a deprivation of a constitutional right. There’s finality either way.
I have certainly not “completely discounted” the value of finality. But I also don’t believe that the sky is falling on the death penalty because this claim is going forward.
Comment by Jeff — June 16, 2006 @ 5:11 pm
Jeff: I’ll stick to my general thesis that there is no violation of federalism if the federal courts butt in where there is a possible constitutional violation.
That is an awfully thin thesis. In fact, if that is the thesis, then what the Supreme Court did in Hill does look entirely unprincipled, because anyone can manufacture a possible constitutional violation to outweigh a state’s interests in handling its own affairs. See Bush v. Gore. One easy way for a judge to do this is to pretend that the state’s interest does not actually exist, e.g., “I think in general the state’s interest in deciding its own election law is also subject to constitutional restraints, but I don’t know that that observation is relevant to a discussion on Bush v. Gore.”
Jeff: “I understand Marbury to be cited for the proposition that courts have the power to exercise judicial review of laws enacted by congress and legislatures”
Your understanding is purposefully underinclusive and, in a sense, question-begging. I was not asking whether or not you could underdefine Marbury in a way so as to avoid necessary conflict in your thin analysis, I was asking a “Yes” or “No” question. “Yes” would have been sufficient.
Thanks, Jeff. I am now much more sympathetic to Federalist’s argument.
Comment by Commentator — June 16, 2006 @ 6:04 pm
I don’t really understand what I did to come under such attack.
If I was underinclusive as to Marbury’s holding, it was not my purpose. I don’t know what I can say about that case that wouldn’t be stating the obvious, but the reason it’s studied in law school is that it lays the foundation for judicial review in this country, so I still have no idea how it’s relevant to the inquiry of 1983 actions for death row inmates. I answered the way I did because I didn’t understand the question. Of course I think it’s good law, but I’ve never once heard an argument to the contrary, so I didn’t see what you were getting at, unless you’re just taking a survey.
And my statement that state interests are subject to constitutional restraints is not a statement that the interests do not exist. The bill of rights is in most respects applicable against states. Therefore, states’ violations of the incorporated provisions are answerable in federal courts unless a state itself is a party. Whatever Our Federalism says does not undo that fact.
I take issue with how my argument is being portrayed. I have not advocated the fabrication of imagined constitutional rights in order to do an end-run around federalism and get into federal court. We’re talking about a claim under a textual provision, not involving nebulous rights of privacy or substantive due process, which are the two areas I expect to be prone to such skepticism. No one is bringing up the word “penumbras” here.
Hill convinced a unanimous court, with a conservative member writing the opinion. This entire discussion has reached an unbelievable level of hyperbole, so I think it’s time to let go. Allow me to be the first. I’ll see you in the comments to some other post.
Comment by Jeff — June 16, 2006 @ 8:21 pm
Penumbras.
Comment by Commentator — June 17, 2006 @ 5:22 pm
Hill convinced a unanimous court
The same could be said of one holding of Bush v. Gore.
Comment by Commentator — June 17, 2006 @ 5:31 pm
I think in general the state’s interest in deciding its own election law is also subject to constitutional restraints, but I don’t know that that observation is relevant to a discussion on Bush v. Gore.”
The reason this implies the state’s interest does not exist is clear. A state having an interest in deciding its own election law would not be relevant to Bush v. Gore if Florida in that case had no interest in deciding its own election law. I take it that you generally believe “constitutional restraints” means just that; the problem is that in any particular case you can decide the state’s interest is not relevant, which means the restraint automatically outweighs the nonexistent state’s interest. It is called “balancing” (with your thumb on the scale).
Comment by Commentator — June 17, 2006 @ 5:38 pm